You’ve heard the expression “The best defense is a good offense.”  Well, this is very true in the world of harassment law.  For our devoted readers of this blog, we know this is preaching to the choir, but it never hurts to make a quick check of your policies and procedures to ensure that you’re using the best practices to deal with harassment in the workplace.

When you undertake that review, be sure you find the following:

  • You have a policy with a complaint procedure.
    • You have trained on and communicated the policy to managers and employees.
    • Employees have acknowledged their receipt of the policy.
    • The complaint procedure contains alternative routes for reporting complaints.
  • You recognize when an investigation should take place.
    • Complaints may come directly from the alleged victim, as well as from workers, contractors, or even customers who report witnessing improper behavior.
    • All forms of harassment should be investigated.
    • Act promptly.
  • You identify the appropriate investigators.
    • If the matter is complex or likely to result in litigation, perhaps an attorney would be the best investigator.  Remember, however, that this individual may become a witness, so consider who you want defending your case.
    • Know the relationship between the potential investigator, the alleged victim, and the alleged harasser.  Any bias could affect the validity of the investigation in the eyes of a jury.
    • Select an investigator who would make a good witness at trial.
    • Work in a team of 2, preferably with an HR representative.  Consider the gender of the team.  Most often one male and one female is best.
  • You know what to ask.
    • Obtain the who, what, when, and where of the incident.  Document the initial accusation and explanation carefully in case someone’s story evolves over time.
    • Ask for all possible witnesses, pro or con.
    • Ask for any other evidence, including written or electronic.
    • Ask these questions of both the accuser and the accused.  A thorough investigation requires looking at both sides of the story.
    • Explore the history between the accuser and the accused.
  • You always attempt to preserve – but do not promise – confidentiality.  A proper investigation will require some disclosure of information.
  • You instruct employees that retaliation will not be tolerated and must be promptly reported.
  • Document, document, document.
    • Maintain the notes of a dedicated note-taker.  If only one investigator is used, that individual’s notes may be sketchy.  In those cases, summaries based on the investigator’s recollection and notes prepared promptly after the interview, with the handwritten notes discarded, may make better documentation.
    • Handwritten statements from witnesses can make great evidence.  These should be given close in time, signed and dated, and should be completed after a thorough interview.
    • Maintain separate investigatory files rather than combining documents into a personnel file.
    • Create a written report.
      • Summarize the investigation.  Include the allegations, explanations, witness summaries, and documents relied upon.
      • Make credibility determinations by describing the actions and reactions of those involved.  Assess the evidence.
      • Make recommendations to upper management.  This may include recommendations on discipline or simply a conclusion as to whether the conduct occurred.

Of course, harassment investigations are not a one size fits all proposition.  They always should be tailored to the specific situation.  However, the above considerations can generally be used as guidance in most cases to ensure you are managing sexual harassment in your workplace from the front end to the back end in the best way you possibly can.

Vanessa Towarnicky's primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment; deliberate intent; age, race, and disability discrimination; wrongful discharge; and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.
» See more articles by Vanessa L. Towarnicky
» Read the full biography of Vanessa L. Towarnicky at Steptoe & Johnson

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